Piepkorn v State Government of South Australia [2004] HCATrans 137 (30 April 2004)

--

Piepkorn v State Government of South Australia [2004] HCATrans 137 (30 April 2004)

Last Updated: 7 May 2004

[2004] HCATrans 137

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A201 of 2003

B e t w e e n -

HENRIETTE PIEPKORN

Applicant

and

STATE GOVERNMENT OF SOUTH AUSTRALIA

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 30 APRIL 2004, AT 2.35 PM

Copyright in the High Court of Australia

MS H. PIEPKORN appeared in person.

MR D.J. MACKINTOSH: May it please the Court, I appear for the respondent. (instructed by Crown Solicitor for the State of South Australia)

GUMMOW J: Now, Ms Piepkorn, what do you wish to say? We have looked at the written submissions. Do you wish to supplement them?

MS PIEPKORN: Yes. I wish to say that the application I put into the Federal Court against the State of South Australia is warranted because I am asking for special leave to appeal, under Constitution section 75, against the State government for breaching its jurisdictional rights on the Constitution basis on the matter of the Conciliation and Arbitration Act, which is the labourer’s law of protection of contract, which is the Conciliation Act section 144A. Justice von Doussa stated he did not know nothing about this Act of 144A. It seems like this Act falls into the Conciliation and Arbitration Act, which is the labourer’s law of protection of contract, which the State government has breached under its legislation, the Occupational Health, Safety and Welfare Act (SA).

The action I have put into the Federal Court was on a Welfare Act because as legislation of occupational health and safety is really based on welfare which guards – the government has to make sure, if I have an occupation, I am protected in health and I am protected on the property of the employer. Now, when I entered the application into the Federal Court, the registrar entered it into the Magistrates Court. It had nothing to do with the Magistrates Court. I explained that to them, and they still sent me to the Magistrates Court.

As it was beyond the capabilities of the Magistrates Court to handle this human rights matter on this Occupational Health and Safety Act, I went and appealed to Justice von Doussa and Justice von Doussa refused to have the application put into the Commonwealth court, which I wanted it heard under because it concerns a matter of Commonwealth social security. He refused the Act and I say he has perverted the course of justice on the grounds that, as his conflicted interest was based that he was a State jurisdictional department officer of the government and then became a federal jurisdictional officer in the Federal Court, this was really a conflict in interest in my matter, because, as I was going against his - - -

GUMMOW J: Explain that again?

MS PIEPKORN: Yes, sorry, your Honour. I said his breach of common law of Crown law duty was because his conflict of interest in the matter, as he was a State jurisdictional department officer , he was State Attorney-General - - -

GUMMOW J: Who?

MS PIEPKORN: Justice von Doussa.

GUMMOW J: He was a judge of the Supreme Court of South Australia many years ago.

MS PIEPKORN: Yes, and he was a State Attorney-General as well, before he became - - -

GUMMOW J: I do not think so.

MS PIEPKORN: Yes, he was.

GUMMOW J: How would that be relevant?

MS PIEPKORN: Because he is torn between defending for the State jurisdictional matter and protecting them on protection of how they involved themselves in a Federal Court matter where my employer, who falls under federal jurisdiction – which was also refused in this Court for a contractual matter. He opposed every action I did on the federal basis and it was intervened by the State government, because, under the Constitution at 51 and 75, if the State Parliament interact into a court which it is allowed to in a State matter and in a federal jurisdiction the course of justice was perverted, because as the matter turned out in this whole thing, it was that, like I said, occupational health and safety and welfare.

My welfare was endangered. That is why I took the matter to the Federal Court, as my welfare came into this matter, because in Commonwealth social security if I am able to work and refuse work then my social security gets stuffed, but I had plenty of employers who would have employed me but the government always stepped in and prevented employment. Now, this is why I took the matter to the Federal Court and Justice von Doussa refused to go against the registrar putting it into the Federal Magistrates Court and refused to put it into the correct court. That is why I am asking for leave to appeal so that I can have it put into the correct court to be heard, as this case was never heard before.

The respondent, apparently, gave me some material here of authorities that he was going to use. He is bringing up old cases that have nothing to do with this new case whatsoever. This is a completely new case against the State of South Australia where we are going to argue about the legislation of third party duty of care. It says, under Crown law, first it says in Constitution 75(iv):

between States, or between residents of different States, or between a State and a resident of another State –

So if the State acts against a federal jurisdictional matter, he is breaching his constitutional rights and - - -

GUMMOW J: I do not think that is right, I am afraid, Ms Piepkorn. I do not think you fully understand these matters, if I may say so.

MS PIEPKORN: But, your Honour, if he can step into a Federal Court, the government, and prevent me taking action against them which I am legally allowed to take action against, if you look under the Crown law duty also if a department officer, it is held that the petition of right to recover from the Crown damages of breach of contract which all the State courts have done and the common law – the Crown enjoys no immunity from remedy of damages. And then its Crown servants, where it says those who act against statute are liable for something then for a private individual would be liable.

If Justice von Doussa refused the action, then I am entitled to have the case heard. That is all the liability I ask from the Federal Court, just to have the case heard. It is not written down in any law books, this kind of case, but it really falls under human rights, too, that I have my right to be heard for the breach of my contract and duty of care from a third party, which is the government. Knowing the statutorial duties, the Crown must be liable in damages to a plaintiff who has been injured by failure of performing duty. Now, he failed in his duty of letting my case go ahead into the correct court and dismissing the matter of the Magistrates Court, because it was not supposed to go there in the first place. It was the incorrect court. I want it to be heard in a Commonwealth court where it can be heard.

Then, you see, negligence, this is all under Crown law. The act complained of was committed outside the jurisdiction. If the government acted into a federal jurisdiction matter when I took a federal jurisdiction matter to court - - -

GUMMOW J: What is the federal jurisdiction matter?

MS PIEPKORN: The matter was, my employer was Caroma Industries, which started the whole thing up. He was a federal jurisdiction matter, because he was under federal jurisdiction, wages were from federal jurisdiction. All the courts – the State court breached its contracts and everything like this because they refused to handle the case. The very first justice who heard the common law - - -

GUMMOW J: But the State of South Australia was never your employer, was it?

MS PIEPKORN: No, but he is my third party, because he takes care of the Industrial Act 1988, Division 3, particular powers of commission. An employment agreement is an agreement that is entered into under State law, regulates terms and conditions of employment of a particular kind and application. Under occupational health and safety, he has to secure me on my property or where I am worked by my employer, my safety. He has to make sure that I get work, so I get my wages and my taxes, so I have my right to my social security from the Commonwealth. He also has to give me proper protection when I go to a medical practitioner to make sure I get treated by medical practitioners experienced in the field of injury. He also, under State law, the terms and the conditions – the conditions is the occupational health and safety – regulates the terms, that means the working hours and the wages.

Now, preventing me from working, the government breaches the Commonwealth social security rights because they prevent the wages and prevent me from being employed and they prevent me from getting my taxes paid, which gives me the right to social security because taxes is the right to social security. The employment agreement, it refuses me to go to work and prevents employers from employing me, like I have had.....from Gerard Industries into Court here. As Justice Mansfield stated, he does not have to answer the question as to why he refuses to employ me, which is that I am not allowed to be employed because I am still unemployed because of the other employer, injury of work, which makes me still contracted to Caroma Industries. Now, that is another breach of Commonwealth social security.

Now, as this matter is still sitting on the fact, as Caroma Industries still has me employed because they had me injured at work, which is under occupational health and safety, I am still employed, so therefore I am allowed to go against the State of South Australia for its terms and regulations of the Industrial Act of employment agreement. Secondly, Magistrate Mead – it was beyond their capabilities in the Magistrates Court to handle this sort of thing, so that is why I appealed against Justice von Doussa. Justice von Doussa, like I said, he was a State jurisdiction matter, so therefore the conflict of interest already started the first time I came here and I was several times before Justice von Doussa.

Now, I am not putting that forward, but I am just putting forward that I just want this matter heard in a court of law, even though it is not written down. I have my legal rights and human rights also states that if I am – let me see, I will find my human rights. The human rights for the European Convention states:

It is sought to protect the human rights of individuals against the abuse of power of the state.

That is on page 8.

GUMMOW J: Now, Ms Piepkorn, you are reading from something that is not part of Australian law.

MS PIEPKORN: Excuse me, it states under British law, which is a better protection of human rights than the Human Rights Commission. This is why I am attending the Commonwealth court, seeing that British law is a better protector of human rights - - -

GUMMOW J: We only apply Australian law, I am afraid.

MS PIEPKORN: No, I am afraid we are not, because we are not federal as yet. We are still under the British Commonwealth - - -

GUMMOW J: No.

MS PIEPKORN: Yes, and as we are still under British - - -

GUMMOW J: This is another area, I am afraid, which is very technical, which I do not think you fully understand either, if I may say so.

MS PIEPKORN: Yes, I do, because I have written to the Human Rights in Strasbourg and it also states that as we are still under British law, we still fall under the British law, therefore we still have to obey it in certain circumstances. You can have certain things in Australian law and certain things in English law, but the situation is that as a officer of the Federal Court Justice von Doussa did breach his Crown law duty and refused the case to be entered into the correct court. All I am asking is for this Court to hear the case against the State of South Australia, to give the right to employment contracts that we are protected under contractual law, which they, apparently – the State states they are not responsible, but they are. If they make the terms and regulations, then occupational health and safety backs that up.

So that is it. I am placing my case on occupational health and safety and the legislation of the State government and breaching the social security, which is the Commonwealth matter, by not allowing me to work and preventing me from working. That is what I wish to bring forward to a
Commonwealth court and that is what I wanted heard, because this case has not been brought forward before. Under human rights, they have said to me I have to exercise all my powers of courts, so if that is so then, also - - -

GUMMOW J: Yes. Thank you.

MS PIEPKORN: Just a second. Justice von Doussa asked me about the human rights. He said to me, “You should go to a commission of human rights”. I said, “Why should I go to a human rights commission, when there are people who are not knowledgeable of the law which the law is the human right?” I said that they are not knowledgeable of law and they are supposed to say, “Yes, sir, no, sir, you are allowed to go”? I said that if the law says I can go to court about it, then I can go to court about it, and I can prove to you about this occupational health and safety legislation. I am not bringing any other old cases into this matter. It is just going to be a new case. Thank you, your Honour.

GUMMOW J: We do not need to call on you, Mr Mackintosh.

There are no prospects of success in any application for special leave to appeal from the decision of the Federal Court of Australia constituted by Justice von Doussa. Accordingly, the application for special leave is refused with costs.

The Court will adjourn until 10.15 am on Tuesday, 18 May at Canberra.

AT 2.52 PM THE MATTER WAS CONCLUDED